Two decades ago, Martin Shapiro urged public law scholars to expand their horizons and begin studying “any public law other than constitutional law, any court other than the Supreme Court, any public lawmaker other then the judge, and any country other than the United States” (Shapiro 1989). Shapiro recognized that American public law scholarship stood at the margins of political science because it did not adequately engage the broad questions in the field0. Perhaps more importantly, Shapiro recognized that judicial institutions had become important political players in a number of countries and that a “judicialization of politics” was on the advance across much of the world.

Since Shapiro's first call for more comparative scholarship, there has been an explosion in the judicial politics literature focused on a variety of regions and themes, including the role of courts in democratizing countries, the relationship between law and social movements, and the judicialization of international politics. However, there has been relatively little research on the dynamics of judicial politics in non-democracies. This gap in the literature is likely the result of a long-standing presumption among many political scientists that courts in authoritarian regimes serve as mere pawns of their rulers, and that they therefore lack any independent influence in political life. Yet, as many of the contributors to this volume have demonstrated elsewhere (Barros 2002, Hilbink 2007, Moustafa 2007, Pereira 2005, Solomon 1996), the empirical reality in many authoritarian regimes cuts against this conventional wisdom.

INTRODUCTION

On September 11, 1973, General Augusto Pinochet helped lead the overthrow of one of Latin America's most democratic regimes. As part of the coup, Chile's military leaders bombed the presidential palace, shut down the Congress, banned political parties, and purged the state bureaucracy. They left the courts, however, completely untouched. Pledging their commitment to judicial independence, the generals kept intact the long-standing system of judicial appointment, evaluation, discipline, and promotion, which placed primary control in the hands of the Supreme Court, and refrained from dictating or otherwise manipulating judicial decisions. The 1925 constitution, which provided a host of liberal and democratic guarantees, remained formally in effect, though the junta gradually (and sometimes retroactively or secretly) supplanted many of these with their own decree-laws, and later, their own constitution. Throughout, the military government insisted it was acting in the name of the rule of law, though its approach violated the most basic principles of that concept.

Despite the formal independence they enjoyed, however, and the resources that the country's legal texts and traditions provided them, Chilean courts never sought to challenge the undemocratic, illiberal, and antilegal policies of the military government. Indeed, they cooperated fully with the authoritarian regime, granting it a mantle of legitimacy not only during the seventeen years of dictatorship, but well beyond the transition back to formal democracy in 1990 (see Hilbink 2007: ch. 5).

Turkey is not a typical authoritarian or democratic regime. For much of the past six decades Turkey has held regular multiparty and reasonably free and fair elections. Power has changed hands numerous times, and governments have come to office and left as a result of elections. Furthermore, even though the Turkish military has intervened in the political process on a number of occasions, unlike in most other developing countries, the periods of direct military rule have been relatively short (1960–1962 and 1980–1983). Finally, for much of the past half-century, Turkey has had lively social and political societies that have acted with relative freedom, although major shortcomings continue to plague both. There is much to suggest that Turkey should be classified as a democracy.

At the same time, however, it is widely recognized that the Turkish political system displays authoritarian tendencies and that the military continues to play an important role in Turkish politics. The Turkish military has formally intervened in politics on four occasions (1960, 1971, 1980, and 1997). In 1960 and 1980, the military officially assumed the reins of power, while in the other two instances it limited itself to issuing a series of ultimatums that eventually brought down the governments of the day without formally interrupting the democratic experience.

The 1960 and 1980 military coups were followed by attempts to restructure political and social life through new constitutions.

This chapter together with Chapter 5 examines judicial behavior, which is the second element of nonlinear judicial empowerment, as outlined in Chapter 2. Judicial behavior is a key element in the trilateral dynamic of judicial empowerment because the two other elements – design of judicial review and compliance with court decisions – do not exist without the court decisions. A polity could have a judicial review body that is enshrined in the constitution and is issuing decisions in parallel with the widespread nonimplementation of court decisions (the USSR Constitutional Supervision Committee). One could also think of a polity where the court asserts judicial review powers without explicit constitutional authorization (lacking the design of judicial review), exercises judicial review of laws, and compels the government to obey its judgments (U.S. Supreme Court). In both cases, court decisions play an important role.

This chapter examines the jurisprudence of the 2nd Constitutional Court to see whether political elites succeeded in having the Court comply with their objectives, how they used judicial review, and what the Court did with its broad judicial review powers. The Russian Constitutional Court resumed its work in February 1995, after the Federation Council appointed its last Justice, Marat Baglai. At that time, the Court was in a difficult position: the new 1993 constitution took away certain powers from the Court and expanded the powers of the president; some regions boycotted the tribunal for being too centralist; Yeltsin's supporters blasted the Court for its antipresidential bias in the 1993 constitutional crisis; and Yeltsin's arch rivals hoped to use the reconstituted Court to revenge the president. Moreover, the Court itself was split between the supporters and opponents of the Russian President.

Unlike its predecessor, the 2nd Russian Constitutional Court has focused its primary attention on developing generally applicable constitutional principles instead of resolving specific political disputes. Badly damaged by Yeltsin's suspension, the 2nd RCC initially turned its attention to individual rights rather than to serious political controversies at both the federal and the subnational levels. However, as I have shown in Chapter 5, the RCC became increasingly involved in the core of Russian politics under the first term of President Putin.

Before I discuss how and why the Court continued to face serious challenges in getting its judgments implemented, a caveat is in order. Recall from Chapter 5 that the 2nd Court has gone beyond the letter of the 1994 RCC Act by issuing various kinds of decisions. Several dozen of them do not annul a contested statute but, instead, contain a constitution-conforming interpretation of the statute.

Institution-building during post-Soviet transformation has been likened to “rebuilding the ship at sea.” This metaphor, once qualified that the “sea” was stormy, could also describe well the politics of designing and setting up new constitutional courts in postcommunist Europe. Gigantic “waves” could be imagined as rapid and dramatic changes of constitutional frameworks prompted by the collapse of Communist Party rule, introduction of “true” parliamentary supremacy and later the office of the president, and power struggles over the destiny of the USSR. A “ship” caught in a tumultuous sea in need of repair was no less than a state itself, first – the USSR, and later – independent Russia. Rebuilding this “vessel” quickly to make it modern, democratic, capitalist, and law-based, was crucial for the survival of the state. The ship's “crew,” pro-Union elites, anti-Union elites in fifteen Soviet republics, and centripetal forces within the Russian Federation, was naturally divided: some argued for incremental repairs to stay afloat, others searched for radical measures to change the course of the drift; some looked for ways of saving the whole ship, others cared most for their own personal survival; some have found scapegoats and others claimed to have discovered the only correct way to salvation.

What is clear from this metaphor is that the short-time horizons of the “crew” (political elites) dominated post-Soviet state-building, which in itself is a long-term task.

At the beginning of the new millennium, when the dust of the postcommunist transition had settled, the dynamics of judicial empowerment in the area of the former Soviet domination held many a surprise. Whether a democracy or not, each postcommunist country had a functioning constitutional court, a new judicial body armed with the power to revoke laws found to be in violation of constitutional provisions. However, just as political regimes varied in the ex-Soviet world, the young constitutional courts also varied in terms of their real judicial power. Some courts immediately started to rule against the powerful but were eventually tamed by the rulers (Russia in 1993 and Hungary in 1999). Some courts were brave enough to impeach popularly elected presidents (Russia and Lithuania), to bar popular politicians from running for the presidency (Bulgaria), or to repeal constitutional amendments (Moldova). Others (Serbia, Georgia, Ukraine, and Kyrgyzstan) simply watched, as mass peaceful protests over fraudulent elections overthrew powerful presidents during so-called colored revolutions of 2000–2005. To nobody's surprise, constitutional courts in “autocracies” (Belarus and Uzbekistan) tended to offer nonbinding recommendations to powerful executives.

What is more surprising is that the postcommunist constitutional review appears to stick to nondemocratic polities. Ruling elites in Albania and Belarus, Kazakhstan and Tajikistan, Russia under President Putin and Slovakia under the Meciar government, create these constitutional courts, then, in a matter of a few years, attack them and yet keep these tribunals operating. Even more surprising is the persistence of accessible constitutional review in nondemocracies.

Chapters 3–5 explained how and why Russia's politicians designed and redesigned the federal constitutional court, and how and why this court functioned the way it did in its first decade and a half. To be sure, the business of creating high courts and conducting judicial review is never done in a vacuum, devoid of a sociopolitical context. This context involves the extent of compliance with the decisions of the constitutional courts, a third element of the trilateral dynamic of judicial review power, as I argued in Chapter 2. Compliance consists of both judicial foresight (How will the elites and the public react to the court decision?) and the actual reaction of the powers-that-be and society, in general, to the judicial decisions: attacks on the very institution of constitutional review, disobedience and delay, or quiet acquiescence. What accounts for this variation? Without studying the actual patterns of compliance and defiance with the decisions of the constitutional courts, one cannot tell how these courts make a difference outside the courthouse: does judicial review bring about significant social change or do courts produce just another “hollow hope”?

As I discussed in Chapter 2, scholars have not reached a consensus on the best strategy for a young constitutional court to improve compliance.

Judging Russia's trials and tribulations with constitutional review is impossible without comparing them against the experiences of constitutional courts in other countries. Is Russia's nonlinear judicial empowerment unique? To answer this question, we need to look at actual judicial politics elsewhere in order to detect whether judicial empowerment is a dynamic and nonlinear process. This chapter explores how other countries dealt with the two most controversial issues that arose in making and remaking the Russian Constitutional Court. One of them was the role of politicians who repeatedly tinkered with judicial tenure attempting to create a friendlier bench, as I discussed in Chapter 3. In the process of this tinkering, judges had to become politicians and lobby the political branches to either lengthen their tenure or leave their Court alone. As a result of this tinkering, Justice Morshchakova, for example, overstayed her term on the bench – a fact that generated conflict within the Court. If my argument that short-term power needs prevail in the business of creating constitutional courts is correct, we should at least examine the attempts (successful or failed) at changing judicial tenure in other countries.

The second main controversy involved the repeated clashes between the constitutional court and other top courts. As I demonstrated in Chapters 3 through 7, the Russian Supreme Court correctly foresaw these clashes, tried its best to prevent the RCC from reviewing verdicts of ordinary courts, and, when that failed, staunchly defended its appellate jurisdiction from invasion by the RCC and even fiercely competed for the power to police Russian federalism.